Allowed

E.J.John v. Mathew Jacob @ Raju

Kerala HC10 Oct 2018FAO (RO)/51/2016

Case brief

AI extract

What is this about?

The High Court allowed the appeal and set aside the lower appellate court's order of remand. The court held that remitting the case entirely was unjustified without finding a need for re-trial, directing the appellate court to determine issues under Section 53A of the Transfer of Property Act first.

What did the court decide?

Set aside order of remand; remitted matter to lower appellate court for fresh determination of Section 53A issues; parties to appear within six months.

E.J.John Vs Mathew Jacob @ Raju — Contract and Commercial Disputes | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940

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FAO (RO).No. 51 of 2016

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AGAINST THE ORDER OF REMAND DATED 20-10-2015 IN AS 276/2009 of PRINCIPAL DISTRICT COURT,KOTTAYAM

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AGAINST THE JUDGMENT & DECREE DATED 13-07-2009 IN OS 173/1997 of PRINCIPAL SUB COURT,KOTTAYAM

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APPELLANT/RESPONDENT NO.1/PLAINTIFF :

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E.J.JOHN, AGED 94, S/O. JOSEPH, RESIDING AT ERIKATTU, THAZHATHANGADI, KOTTAYAM DISTRICT - 686 005, REPRESENTED BY HIS SON AND NEXT FRIEND, JIKKU JOHN, AGED 52, S/O. E.J.JOHN, ERIKKATTU HOUSE, THAZHATHANGADI, KOTTAYAM DISTRICT, PIN - 686 005.

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(DIED, LR IMPLEADED)

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ADDL. APPELLANT

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JIKKU JOHN, AGED 52, S/O. E.J.JOHN, ERIKKATTU HOUSE, THAZHATHANGADI, KOTTAYAM DISTRICT, PIN - 686 005

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SOLE APPELLANT DIED. HIS LEGAL REPRESENTATIVE IS IMPLEADED AS ADDL. APPELLANT VIDE ORDER DATED 26.7.2016 IN IA 787/2016.

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BY ADVS. SRI.P.VISWANATHAN SRI.PREMJIT NAGENDRAN SRI.SUNIL N.SHENOI

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RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 6/DEFENDANTS :

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1 MATHEW JACOB @ RAJU AGED ABOUT 58 YEARS S/O. CHACKO, RESIDING AT PANACHERIL HOUSE, EDAKUNNAM KARA, EDAKUNNAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT - 686 512.

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FAO (RO).No. 51 of 2016

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2 MATHEW EAPEN AGED ABOUT 64, S/O. EAPEN, RESIDING AT THARAPPEL, CHEMMALAMATTOM KARA, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT.

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3 ROSAMMA AGED ABOUT 58, W/O. MATHEW EAPEN, RESIDING AT THARAPPEL, CHEMMALAMATTOM KARA, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT

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4 HYDI AGED 30 YEARS D/O. MATHEW EAPEN, RESIDING AT THARAPPEL, CHEMMALAMATTOM KARA, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT

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5 SUSAN AGED ABOUT 29, D/O. MATHEW EAPEN, RESIDING AT THARAPPEL, CHEMMALAMATTOM KARA, KONDOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT

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6 GEORGE AGED ABOUT 59 S/O. VARKEY, RESIDING AT AZHAKATHU HOUSE, AMALAGIRI KARA, PERUVANTHANAM VILLAGE, PEERUMADE TALUK, IDUKKI DISTRICT.

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R1 BY ADVS. SRI.K.ARJUN VENUGOPAL SMT.P.M.MAZNA MANSOOR SMT.SANDHYA R.NAIR SRI.C.R.SYAMKUMAR SRI.P.CHANDRASEKHAR

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 10.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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FAO (RO).No. 51 of 2016

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JUDGMENT

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Plaintiff in O.S.No.173 of 1997 before the Court of Principal Sub Judge, Kottayam was the 1^st respondent in A.S.No.276 of 2009 before the Principal District Judge, Kottayam. The plaintiff is aggrieved by the order of remand passed by the lower appellate court. Contesting respondents are the defendants in the suit.

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The substantial questions of law arising in this appeal are thus:

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Whether the lower appellate court was justified in remanding the matter to the trial court for the consideration of the petition to send Ext.B1 for expert opinion regarding its genuineness when the genuineness of Ext.B1 is not a relevant factor to decide the question involved in the matter ?

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Whether the lower appellate court was right in remanding the matter to find out the genuineness of Ext.B1 when the facts and circumstance of the case clearly reveal that the 6^th defendant is not entitled to get benefit under Section 53A of the Transfer of Property Act ?

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Whether the lower appellate court is justified in remanding the matter once it was found that the 6^th defendant failed to establish his readiness and willingness to purchase the property in dispute ?

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FAO (RO).No. 51 of 2016

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Heard the learned counsel for the appellant and contesting respondents.

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O.S.No.173 of 1997 was originally filed as a suit for declaration of title and permanent prohibitory injunction. Subsequently it was amended to bring in a prayer for recovery of possession of the plaint schedule property on the strength of the plaintiff's title too. The amendment to the plaint was made on the allegation that subsequent to institution of the suit, the 6^th defendant trespassed upon the property. Even though other defendants have placed their pleadings, they did not contest and the 6^th defendant alone contested the suit before the trial court. The plaint schedule property is part of a larger extent of plantation. It is the case in the plaint that in 1996, an extent of 15 acres of land was sold by the plaintiff to one Thomas Mukkath and his wife and children. Plaint B schedule is the property sold by the plaintiff in favour of Thresiamma. On the western side of the property, a road is situate. Vendees were put in possession of respective properties. It is the allegation in the plaint that defendants tried to trespass upon the property and hence the suit was initially filed. Later, the suit was amended alleging that the 6^th defendant, on or before

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FAO (RO).No. 51 of 2016

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30.5.1997, trespassed into the plaint schedule property and put up a shed. Hence further reliefs were added to the plaint.

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The 6^th defendant filed a written statement alleging that the plaintiff is not the absolute owner in possession of the plaint schedule property. According to him, he is in uninterrupted possession and enjoyment of the property since 4.7.1996. The 6^th defendant is doing real estate business. On the basis of an agreement executed between the plaintiff and 6^th defendant on 4.7.1996, he came into possession of the property. According to the terms and conditions in the agreement, the plaintiff/appellant could only seek balance consideration stipulated and he is not entitled to recovery of possession. Subsequent to the amendment in the plaint, he has filed an additional written statement raising a plea under Section 53 A of the Transfer of Property Act, 1882 (in short, the Act). Thereafter the plaintiff filed a replication opposing the contentions raised by the 6^th defendant. It is the specific contention of the plaintiff that the 6^th defendant is not entitled to get the benefit under Section 53 A of the Act.

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The trial court raised the following issues:

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Whether the plaintiff is entitled to the declaration of title and possession over the plaint schedule

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FAO (RO).No. 51 of 2016

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property ?

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Whether the 6^th defendant is in possession of the plaint schedule property and entitled to the benefit u/s 53A of the T.P. Act ?

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Whether the plaintiff is entitled to recover possession of the plaint schedule property from the 6^th defendant by removing the unauthorised construction ?

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Whether the plaintiff is entitled to future profits at the rate of Rs.10,000/- per year as claimed ?

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Whether the plaintiff is entitled to a decree of perpetual prohibitory injunction against the defendants as prayed for ?

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Reliefs and costs.

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On a consideration of the oral evidence adduced by

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PWs 1 and 2 and DWs 1 to 3 and Exts.A1 to A18, B1 and C1 to

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C3, the trial court decreed the suit in the following terms:

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In the result, the suit is decreed and the plaintiff's right, title and possession over the property are declared. The plaintiff is allowed to take possession of the plaint schedule property from the Receiver by removing the unauthorised constructions. The defendants are hereby restrained by a decree of perpetual prohibitory injunction from trespassing into the plaint schedule property and from committing any waste or causing any obstruction to the peaceful possession and enjoyment of the same by the plaintiff. The plaintiff is also allowed the costs of the suit from the 6^th defendant and his assets.

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FAO (RO).No. 51 of 2016

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Except the plea of granting mesne profits, other reliefs were granted to the plaintiff. Feeling aggrieved, the 6^th defendant preferred A.S.No.276 of 2009 before the lower appellate court.

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Learned counsel for the appellant contended that the court below, without examining the real issues involved in the case and without considering the evidence available on record, callously remanded the matter to the trial court. According to him, invocation of jurisdiction vested in it under Order 41 Rule 23A of the Code of Civil Procedure, 1908 (in short, the Code) was illegal. It is an admitted fact that the 6^th defendant filed O.S.No.191 of 1998 before the trial court for specific performance of Ext.B1 agreement set up by him against the plaintiff. It is pertinent to note that the plaintiff has specifically denied execution of Ext.B1. He has raised pleadings to the effect that Ext.B1 is a concocted document. O.S.No.191 of 1998 was obviously instituted after institution of the present suit. It is an undeniable fact that O.S.No.191 of 1998 was terminated by rejection of the plaint for non-payment of balance court fee. Ext.A14 is the judgment in that matter. It is the common case that rejection of the plaint has become final. It is also the case that the 6^th defendant has not instituted any suit as provided in

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FAO (RO).No. 51 of 2016

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Order 7 Rule 13 of the Code.

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It is now contended by the learned counsel for the appellant that rejection of the plaint and non-prosecution of the reliefs sought for in O.S.No.191 of 1998 in a subsequent suit will amount to abandonment. This aspect has been strongly countered by the learned counsel for the 6^th defendant. Whatever that be, it is clear that the 6^th defendant did not pursue the remedy under Ext.B1 agreement by a separate suit. What is the legal effect is a matter to be decided by the court below on appreciating the legal and factual issues involved in the case. If non-prosecution of the remedies against Ext.B1 has become final, whether it will have an impact on the claim of the 6^th defendant under Section 53A of the Act is also a matter to be probed.

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It is seen from the impugned judgment that the court below did not apply its mind and enter any finding regarding the legal and factual issues raised in the appeal. Instead, it simply remanded the case to the trial court on finding that I.A.No.36 of 2009 filed by the 6^th defendant before the trial court for sending Ext.B1 for scrutiny of an expert was not considered by the trial court. It is true that no considered order

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FAO (RO).No. 51 of 2016

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was passed on the interlocutory application by the trial court. It is also an undisputed fact that the trial court has not applied its mind to the questions involved in the above interlocutory application and pronounced nothing in the judgment.

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The question as to genuineness of Ext.B1 will arise only if the 6^th defendant is found to be legally entitled to raise a plea under Section 53A of the Act by virtue of Ext.B1. In other words, the question of sending Ext.B1 to an expert will arise only if the lower appellate court enters a finding that the 6^th defendant is entitled to make a claim of part performance and retain possession under Section 53A of the Act if his right to claim so is not lost by non-prosecution of the remedy available to him against Ext.B1. Determination of that issue is relevant before taking any decision on the interlocutory application.

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Learned counsel appearing on both sides agreed on one fact that all these exercise could have been done before the lower appellate court itself. It is the request made by the learned counsel for the 6^th defendant that a right for the lower appellate court to remand the case on establishing genuine grounds may not be shut out. On an overall assessment of the evidence and the legal contentions raised, I am of the view that

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FAO (RO).No. 51 of 2016

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if at all the lower appellate court finds that probing into the genuineness of Ext.B1 is required, it can be done by invoking Order 41 Rule 25 of the Code. Merely for adducing evidence, the entire matter need not be remanded back to the trial court.

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On a perusal of the judgment by the lower appellate court, I am of the view that none of the legal questions arising in this case has been properly examined by the court below. Having regard to the facts and circumstances, I find that the order of remand cannot be legally justified when there is no finding entered by the court below that the decree has to be reversed and a re-trial is necessary in this case. The substantial questions of law are decided in favour of the appellant.

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In the result, the appeal is allowed. The order of remand passed by the lower appellate court is hereby set aside. The matter is remitted back to the lower appellate court for a fresh determination on the evidence available before it. It is made clear that the question whether the 6^th defendant can raise a claim under Section 53A of the Act will have to be answered. If that is found in favour of the 6^th defendant, then the question of determining genuineness of Ext.B1 shall be probed into either by taking evidence before the appellate court itself or by

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FAO (RO).No. 51 of 2016

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invoking Order 41 Rule 25 of the Code. The whole exercise shall be finalised within six months from the date of appearance of the parties. The parties shall appear before the lower appellate court on 15.11.2018.

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All pending interlocutory applications will stand dismissed.

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Sd/-

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A.HARIPRASAD

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JUDGE

E.J.John v. Mathew Jacob @ Raju

Case brief

What is this about?

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E.J.John v. Mathew Jacob @ Raju

Case brief

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